Antisocial Trademarks

Abstract

Of all the areas of intellectual property (IP) law, trademark law is the one that most explicitly engages with public order and morality considerations in the granting of rights. At the same time, it also struggles with the integration of moral values in a regime that manages the symbols used in commerce rather than the morality of particular goods or services, or the appropriateness of brand messages. This paper examines morality in trademark law through three broad categories of trademarks that have been the subject of restrictive state action because of inherent or attributed antisocial qualities. The first category includes trademarks that are refused registration because they are considered to be offensive to public order or morality. The second category consists of trademarks that are limited or restricted because they are associated with antisocial goods or services. The final category is that of trademarks with antisocial brand messages. Although much ink has already been spilled regarding the registrability of scandalous or immoral trademarks, these other issues of morality in trademark law remain relatively unexplored. Public order and morality-based restrictions on trademarks have inevitably raised issues of freedom of expression, state interference with property rights, and the basic nature of trademark rights. In exploring public order and morality in trademark law, one goal of this paper is to shed light on the particular nature of trademark rights, as well as the relationship between their communicative function and the public interest.

Keywords: trademarks, intellectual property, disparaging marks, morality